United States District Court, D. Colorado
ORDER ON PARTIAL MOTION TO DISMISS
Brooke Jackson, United States District Judge.
employment discrimination lawsuit, defendant United Airlines,
Inc. (“United”) moves to dismiss all but one of
plaintiff Greg Kachadoorian's claims for relief. ECF No.
51. For the reasons stated below, the motion is GRANTED.
began working for defendant in May 1995, attaining the
management position of ramp supervisor. Second Amended
Complaint (“SAC”), ECF No. 57 at
¶¶13-14. On February 1, 2018, after 23 years of
service, defendant terminated the 57-year-old employee for
poor performance. Id. at ¶¶16, 18.
Plaintiff alleges that defendant's justification for his
termination was “false, exaggerated and
pretextual.” Id. at ¶18. The real
motivation, according to plaintiff, was his age and gender.
Id. at ¶19. Plaintiff reached this conclusion
by alleging that defendant “has a history of ridding
itself of older and long-term employees for bogus reasons and
also for complaining about discrimination.”
Id. at ¶20.
filed his complaint in this Court on May 16, 2018. ECF No. 1.
At the time, he had yet to file charges with the U.S. Equal
Employment Opportunity Commission (“EEOC”),
thereby making his discrimination and retaliation claims
premature. As such, his original complaint focused on
United's alleged breach of contract for failure to honor
its appeal process, misrepresentation, and fraudulent
concealment. Id. at ¶¶70-81. Defendant
moved to dismiss all five original claims, ECF No. 13, and I
granted that motion in part, ECF No. 37. Only plaintiff's
breach of contract claim, and alternatively, his promissory
estoppel claim, survived. Id. at 13- 14. In short, I
found that the termination letter that defendant provided
plaintiff contained a sufficient promise that he had a right
to appeal his termination decision in accordance with
defendant's “Working Together Guidelines.” In
reliance on that promise, plaintiff began the appeal process
the day after his termination. Defendant almost completed the
entire appeal process, including a face-to-face meeting, but
defendant stopped short of completing the last step-it never
issued a ruling on the appeal. I ruled that plaintiff adequately
pled a breach of contract claim based on defendant's
failure to adhere to its appeal procedure, as outlined in its
Working Together Guidelines and as promised in
plaintiff's termination letter.
September 30, 2018 plaintiff received his notice of right to
sue for alleged age discrimination from the EEOC. He
subsequently filed a first amended complaint
(“FAC”). ECF No. 45. Plaintiff's FAC alleged
claims of (1) age discrimination under federal and state law;
(2) improper retaliation under federal and state law; (3) and
breach of contract and estoppel. Id. at 17-18.
Moreover, on December 8, 2018 plaintiff received a notice of
right to sue for alleged sex discrimination. Upon receipt of
this second right to sue notice, he sought leave to amend his
FAC to add a claim of sex discrimination. ECF No. 50. The
following day, defendant filed its second motion to dismiss,
seeking to dismiss all but the breach of contract and
estoppel claims contained in the FAC. ECF No. 51. Plaintiff
responded in opposition, ECF No. 54, and defendant replied,
ECF No. 55. I granted plaintiff's motion to amend his
FAC, but instead of mooting defendant's motion to
dismiss, I allowed each side to supplement their motion to
dismiss papers. ECF No. 56. Defendant submitted a
supplemental brief in which it focused almost entirely on
plaintiff's sex discrimination allegations. ECF No. 58.
Plaintiff did not respond. Defendant's motion to dismiss
is now ripe for review.
STANDARD OF REVIEW
survive a 12(b)(6) motion to dismiss, the complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plausible claim is a claim that
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
the Court must accept the well-pleaded allegations of the
complaint as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300
F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are
not entitled to be presumed true. Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised
above the speculative level, he has met the threshold
pleading standard. See, e.g., Twombly, 550
U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286
(10th Cir. 2008).
motion boils down to whether plaintiff has satisfied the
basic pleading standards as explained by the Supreme Court in
Twombly and Iqbal. Defendant argues that
plaintiff's discrimination and retaliation claims are
vague, conclusory, and devoid of factual allegations. ECF No.
51 at 2. I agree.
Federal Age and Sex Discrimination Claims.
Discrimination in Employment Act (“ADEA”) makes
it unlawful for an employer to discharge an employee because
of the employee's age, and Title VII prohibits employment
discrimination on the basis of sex, among other protected
classes. 29 U.S.C. § 623(a)(1); 42 U.S.C. §
2000e-2(a)(1). To prevail on his discrimination claims,
plaintiff must establish intentional discrimination through
either direct or indirect evidence. Orr v. City of
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).
Where, as here, there is no direct evidence of
discrimination, a court must apply the burden-shifting
analysis outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Id. The first step
in that analysis requires plaintiff to establish a prima
facie case of discrimination.Id. To properly state a
claim under the ADEA, plaintiff must allege “that (1)
he is ‘within the protected age group'; (2) he
‘was doing satisfactory work'; (3) he ‘was
discharged'; and (4) h[is] position was filled by a
younger person.” Cone v. Longmont United Hosp.
Ass'n, 14 F.3d 526, 529 (10th Cir. 1994) (quoting
Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420
(10th Cir. 1991)). To properly state a Title VII sex
discrimination claim, plaintiff must establish that
“(1) he is a member of a protected class, (2) he
suffered an adverse employment action, (3) he qualified for
the position at issue, and (4) he was treated less
favorably than others not in the protected class.”
Khalik v. United Air Lines, 671 F.3d ...